Property Rights Foundation of America®

from Proceedings of the First Annual New York Conference on Private Property Rights (PRFA, 1995)

Model State Statute or State Constitutional Amendment
Concerning
Compensation for Takings of Private Property

prepared by
Roger Pilon, Ph.D., J.D. Senior Fellow and Director
Cato Institute, Center for Constitutional Studies
1000 Massachusetts Avenue, N.W.
Washington, DC 20001
202-789-5233

If any non-tax or non-penalty action by the State or any of its agencies or political subdivisions reduces the fair market value of real or personal private property in the State, the owner of said property shall have a claim against the State or relevant agency or subdivision for compensation for such loss, except that no compensation shall be required:

1. if the action results merely in a diminution of the value of the property but does not otherwise destroy, damage, trespass upon, or take the property or prohibit any rightful use of the property;

2. if the action prohibits uses of the property that are injurious or potentially injurious to others or to the public, as defined by common law, statute, regulation, or rule, provided that such injurious or potentially injurious uses shall not be construed to include uses the prohibition of which would confer a benefit on others or on the public, for which compensation is required under this amendment; or

3. if the action produces benefits to the owner equivalent to or greater than any loss to the owner as determined by the fair market value of the property before and after the action.

This amendment applies to all non-tax and all non-penalty statutes, regulations, rules, administrative decisions, and judicial rulings that take effect after the effective date of the amendment.

This amendment shall be enforced through administrative procedure, suit at law, or both, at the option of the owner. All enforcement costs, including attorney's fees, shall be borne by the State or the relevant agency or subdivision, except that an owner who does not prevail in a final action for compensation shall bear his own enforcement costs and a pro-rata share of any administrative or court costs, and an owner who does not prevail in an action for an increase in a previously adjudicated compensation award shall bear the like costs in the same proportion for any such subsequent actions.

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